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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)     NOT REPORTABLE

(2)     NOT OF INTEEST TO OTHER JUDGES

(3)     REVISED

 

CASE N0:64389/2014

29/5/2018

 

In the matter between:

 

JOSEPH MUTHUPHEI NEKUVULE                                                 FIRST APPLICANT

KUVULE COMMUNITY                                                                      SECOND APPLICANT

and

 

COAL OF AFRICA LIMITED                                                              RESPONDENT

In re:

In the matter between:

 

JOSEPH MUTHUPHEI NEKUVULE                                                 FIRST APPLICANT

KUVULE COMMUNITY                                                                      SECOND APPLICANT

and

 

COAL OF AFRICA LIMITED                                                              FIRST RESPONDENT

KING TONY PETER MPHEPHU,                                                       SECOND RESPONDENT

LIMPOPO PROVINCE

HENRY NTHAMBELENI MUSEKWA                                           THIRD RESPONDENT

COMMISSION ON RESTITUTION OF                                         FOURTH RESPONDENT

LAND LIMPOPO PROVINCE

MAKHADO MUNICIPALITY                                                         SIXTH RESPONDENT

PREMIER OF LIMPOPO                                                                 SEVENTH RESPONDENT

CHAIRMAN OF THE NATIONAL HOUSE                                  EIGHT RESPONDENT

OF TRADITIONAL LEADERS

COMMISSION ON TRADITIONAL LEADERSHIP,

DISPUTES AND CLAIMS                                                                NINTH RESPONDENT

SIMON NEMULAMBWANE                                                           TENTH RESPONDENT

PHINEAS RADZILANI MUDIMELI                                             ELEVENTH RESPONDENT

MINISTER FOR CO-OPERATIVE

GOVERNANCE HUMAN SETTLEMENTS AND

TRADITIONAL AFFAIRS                                                               TWELFTH RESPONDENT

THE MINISTER OF MINERALS AND ENERGY ·

THIRTEENTH RESPONDENT

MUSHOLOBI COMMUNITY                                                   FOURTEENTH RESPONDENT

THE MAKUSHU COMMUNITY                                              FIFTEENTH RESPONDENT

THE PFUMEMBE COMMUNITY                                            SIXTEENTH RESPONDENT

THE MPHEPHU RAMABULANA TRUST                            SEVENTEENTH RESPONDENT

 
JUDGMENT: APPLICATION FQR LEAVE TO APPEAL

RANCHOD J:

[1]       This is an application for leave to appeal against the whole of the judgment and order I made on 12 February 2018 in an interlocutory application by Coal of Africa Ltd (CoA) in terms of Rule 7(1) of the Uniform Rules of Court.

[2]        Various grounds for leave to appeal have been set out in the application. However, counsel for CoA, Mr Ameer, submitted that as the order made was an interlocutory application it was not appealable and the application should be dismissed on this ground alone. The applicants' counsel, Mr Shakoane SC contended otherwise.

[3]        It was agreed that the parties may make written submissions on this specific issue. Both counsel thereafter filed their respective written submissions.

[4]        Mr Ameer relied on Zweni v Minister of Law and Order 1993(1) SA 523 (A) for the submission that an interlocutory order was not appealable. Mr Shakoane submitted that the decision in Zweni was "no longer good law in the current dispensation governed by Section 17 of the Superior Courts Act, [No. 1O of 2013] read with the provisions of the Constitution of the Republic of South Africa Act [1996, as amended]".

[5]        In essence, Mr Shakoane relies on Phillips v SA Reserve Bank_2013(6} SA 450 (SCA); National Treasury & Others v Opposition to Urban Tolling Alliance & Others 2012(6) SA 223 (CC) at paras 24 to 25 (OUTA); and Afriforum & Another v University of the Free State 2018 (2) SA 185 (CC) at paras 32, 82 and 118.

[6]        The case of OUTA is distinguishable from the facts in casu in that it held that if an interim order has a final effect and the order in some way impacts on an existing right (by way of an interim interdict), the interim order is appealable. That proposition is foreshadowed in Zweni. It is quite plain that it would be in the interests of justice to grant leave to appeal any such interim order which has the effect of restraining certain rights, particularly if the court a quo is wrong. More importantly, the interests of justice in the OUTA case warranted leave to appeal being granted because the restraining order would "unduly trespass upon the sole terrain of other branches of government even before the final determination of the review grounds" said the court. The Constitutional Court held that "a court must be astute not to stop dead the exercise of executive or legislative power before the exercise has been successfully and finally impugned on review". The facts supporting such a case are very different to the present one where there is no interdict.

[7]        OUTA is no authority for the proposition that Zweni is no longer good law; or that interim orders are appealable as a matter of right where they do not have any final effect or infringe any right.

[8]        The Afriforum case referred to and in particular paragraphs 32, 82 and 118, also does not assist the applicants' submissions that leave should be granted. Paragraph 32 of Afriforum deals with an interim order to suspend the execution of a tender pending the application to have the tender set aside. It does not apply to appeals. The nature of an interim order suspending the execution of an incorrectly awarded tender i$ very different to an interim appeal in that the former entails an enquiry into balance of convenience while the latter does not. It is important to note that paragraphs 82 and 118 are part of a minority dissenting judgment that leave to appeal should have been granted. The majority of Judges in the Constitutional Court refused leave to appeal.

[9]         In this matter before me the referral to trial far from satisfies the threshold set in OUTA nor does the latter or Afriforum support the proposition that a simple referral to trial is appealable.

[10]      The principle set out in Zweni is, in my view, still good law. It has not been overruled in any subsequent decision.

[11]      The submission in the applicants' heads of argument that Zweni is no longer good law cannot pass muster. Zweni has been consistently applied despite the new Supreme Court Act and the difference in the wording relating to applications for leave to appeal. For instance, by a majority of 7 to 4, the Constitutional Court in Balisto v Firstrand Bank tla Wesbank 2017 (1) SA 292 (CC), as late as 2016 applied the dictum in Zweni. Also, in 2017, the Supreme Court of Appeal in Wingate-Pearse v Commission of South African Revenue Services 2017 (1) SA 542 (SCA), referred, with approval, to the Zweni case. That appeal dealt squarely with whether the decision of a Tax Court was appealable. The Court referred, in para 16 (footnote 5 of the Judgment) to the Zweni principle and applied it.

[12]     Zweni's case was also applied in a 2016 Supreme Court of Appeal judgment of Nova Property Group Holdings Ltd v Cobbett and Another 2016 (1) SA 316 (SCA). The Court specifically referred to Zweni's case, with approval, as modified. Both the most recent SCA pronouncements on the matter were unanimous decisions.

[13]     In this matter before me, an appeal at this stage will not have final effect or resolve a 'real issue' in the main application, or infringe any right.

[14]     The application for leave to appeal is dismissed with costs.

 

 

 

RANCHODJ

JUDGE OF THE HIGH COURT

 

Appearances:

 

Counsel for the Applicants:                        Adv. G Shakoane SC

Instructed by:                                                Denga Inc.

 

Counsel for the Respondent :                    Adv. G.M Ameer

Instructed by:                                                Edward Nathan Sonnenbergs

 

Date heard                                                    : 26 March 2018

Date delivered                                              : 29 May 2018

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